Second, the Yahoo! legal team doesn't act on claims just because someone claimed something. They act when there's evidence that copyright has been infringed.

Third, your best bet is to await a reply from staff, and continue communicating with them. Having seen similar discussions in this forum, I've never seen anything fruitful come of it -- anyone can drop into this forum (and they usually do), and the discussion can't possibly solve anything -- because we're just users of Flickr too. :-)
Posted 38 months ago.
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Second, the Yahoo! legal team doesn't act on claims just because someone claimed something. They act when there's evidence that copyright has been infringed.

Well that is as may be but I can't see how they can do when I know I have taken all my shots so there can be no evidence...

I know we are all 'just' users I thought maybe someone else had some experience of this is all.....discussion can't solve anything in this forum but as we say over here a trouble shred is a trouble halved!
Posted 38 months ago.
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"Second, the Yahoo! legal team doesn't act on claims just because someone claimed something."

Are you sure about that? In order to take advantage of the 'safe harbor' provisions of the DMCA (which regulates this sort of thing in the US) service providers have to act on pretty much any reasonable looking take-down notice until or unless the victim files a proper counter notice. Which sounds like the next step here.
Posted 38 months ago.
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"Yahoo! legal team doesn't act on claims just because someone claimed something. They act when there's evidence that copyright has been infringed."

Yes and no.

The only evidence needed to file an NOI is the written statement of the Copyright holder or his/her agent. No other proof needs to be offered other than, "This is my work and it has been stolen."

The NOI is a sworn legal document. providing all the I's are dotted and the T's are crossed the document is taken at face value. You know since you have filed several. I too have filed several of these and encouraged others to do so. In none of my cases did Yahoo ever ask for information/ evidence beyond the basic statement that the image was mine.

I have seen three malicious NOI's files. Two of which were against the same person. In all three case staff took the side of the complainant but allowed the other person to rebut after they removed the images.

Judging by the OP's stream, this may be a case of mistaken identity. The person looks like a reasonable photographer and does not need to pinch photos from others.

I agree with you as the best form of action is to await staffs reply. This will get resolved quickly.
Posted 38 months ago.
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The only evidence needed to file an NOI is the written statement of the Copyright holder or his/her agent. No other proof needs to be offered other than, "This is my work and it has been stolen."

But part of that legal form is describing the work that had been copied (at least when I file it from the U.S. -- I realize the form is different, depending on your country).

In all cases where I've filed a complaint, I've been able to point to the original file in my Flickr account (so there's no question of ownership; I have the original file, while the offender has only the "large" size at best).

In none of my cases did Yahoo ever ask for information/ evidence beyond the basic statement that the image was mine.

In all my cases, if I hadn't completely filled out all six of the bullet points on the form, Yahoo! responded to me, asking me to complete the form. So it was a little more than just a "basic statement".

However, my "second" statement above was based purely on my own experience with filing these claims, and not based on anything else. If it's not true, and if any simple claim can cause the deletion of someone else's image, something is severely wrong somewhere.

Hopefully lovestruck (the OP here) can find out what happened and get this resolved.

If it's not true, and if any simple claim can cause the deletion of someone else's image, something is severely wrong somewhere.

Indeed; something is very wrong in the US, land of the best laws money can buy. This sort of thing is one of the many reasons that the DMCA is such a bad bit of law.
Posted 38 months ago.
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In all cases where I've filed a complaint, I've been able to point to the original file in my Flickr account (so there's no question of ownership; I have the original file, while the offender has only the "large" size at best).

Not really true. All it shows is that you uploaded it first and uploaded it bigger than the other dude. It does not prove ownership in the least bit.

if I hadn't completely filled out all six of the bullet points on the form, Yahoo! responded to me, asking me to complete the form.

Agreed, you have to dot your I's and cross your T's. It is a precise legal document. The only proof you need to offer is a written description that you own the image.
Posted 38 months ago.
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Well, burnt umber reborn, what does prove it then?
Is it proof that I uploaded a photo years earlier than the offender and I have all exif data and the offender none except when it was supposed to be taken. Especially as it was taken when a building was half ready and the offender claims it was taken after the opening day!
Posted 38 months ago.
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...There is another possibility - It may not be that the Photograph that has been removed is itself claimed to be a copy, but that it is a photograph of something protected. A few years back Birmingham Museum & Art Gallery had a number of pictures taken down of works of art/exhibits in the museum. (This upset a number of people who had specifically asked for, and received permission to take the pictures. I believe they now have a more friendly attitude to photographers...)
Posted 38 months ago.
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The DMCA has provisions for refuting a claim. Once you do the original complainer has some time, say 14 days to affirm they want to take additional legal actions, and I think they have to present proof to Yahoo Legal of that intent. if they fail to do so in that time frame then the complaint is dropped and the image restored on the other person's photostream.

On a site like this, where lots of other metadata could have been generated around that image (comments, notes, favs, etc) it's cold comfort, as all of that is lost forever.
Posted 38 months ago.
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The Chilling Effects FAQ has an entry on this, and the requirements are rather stronger - they don't have to just show intent, they have to actually file the lawsuit. If they don't, then in principle, the service provider is required to put the material back.

A while ago Flickr/Yahoo changed their procedures slightly, so that for a claim completely within the US (so, where both claimant and the alleged infringer) are in the US, then they shouldn't delete the image completely, just hide it and replace it with a message stating that it's been removed due to a DMCA claim. As I understand it, all the metadata remains intact, so in the event of a proper counter notice being received, they can just put it back like nothing ever happened.
Posted 38 months ago.
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Ewan - I just had an image taken down yesterday from Flickr. Someone reposted one of my photos to their photostream. The photo was removed entirely. URL gone. I was surprised - I was expecting to see the removed due to a DMCA request message.

(Edit: come to think of it, the infringer could have deleted the photo once it was replaced with the removed due to a DMCA request notice, so my observation isn't as significant as I first thought)
Posted 38 months ago.
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The photograph in question was not of a protected thing it was a set of sluice wheels on a river in the English countryside...I took it myself and the original had my husband in it but I cropped him out before I uploaded it.

I have replied to the address that the Flickr mail gave me with the case number but have not heard back yet...
Posted 38 months ago.
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Chilling Effects is a collaborative archive created by several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats. Its website, Chilling Effects Clearinghouse, allows recipients of cease-and-desist notices to submit them to the site and receive information about their legal rights and responsibilities.

Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
Identification of the material and its location before removal [512(g)(3)(B)]
A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]

Further to this discussion, flickr needs to update the FAQ in relation to filing a false notice of infringement. A form to assist in filing a notice of infringement is available. It should be just as easy to file a counter-notice.
Posted 38 months ago.
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RE: Mistaken Removal
Dear flickr;
Please find attached to this letter a list of material removed by you pursuant to 17
U.S.C. Section 512. I have a good faith belief that this material was removed or disabled
in error as a result of mistake or misidentification of the material. I declare that this is
true and accurate under penalty of perjury under the laws of the United States of
America.
For the purposes of this matter, I consent to the jurisdiction of the Federal District
Court for the judicial district in which the service provider may be found. I also consent to service
by the person providing notification under Section 512(c)(1)(C) or that person’s agent.
However, by this letter, I do not waive any other rights, including the ability to pursue an
action for the removal or disabling of access to this material, if wrongful.
Having complied with the requirements of Section 512(g)(3), I remind you that
you must now replace the blocked or removed material and cease disabling access to it
within fourteen business days of your receipt of this notice. Please notify me when this
has been done.
I appreciate your prompt attention to this matter. If you have any questions about
this notice, please do not hesitate to contact me.
Sincerely,

and I have compared notes and it seems that both came from the same company. Wasteland, Inc.

It's odd that they claim a photo of some canal equipment infringes their copyright. It's odd that they claim a collage of photos of street art infringes their copyright. That they claim both seems to make them both seem even more unlikely.

Unfortunately, I don't think I'll find out more about how and why they think I'm infringing their copyright unless they decide to counter my counter and seek a court order to restrain me.
Posted 38 months ago.
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I've seen this before with images that have "gotten away" from people, blogged and re-blogged, attribution lost, etc. Eventually someone grabs it and starts using it as their own, prints, tshirts, etc, and then treats any copies found online as infringing. Copyright squatters, basically. On the surface they tend to have legal weight, because they can show "proof" of their established products, while on the web it's pretty easy to change/fake a posting date. They know an octogenarian judge will probably side with them.

I think this sort of thing is going to become more and more common, maybe it's time Flickr updated its processes to make it easier to counter-claim.

I tried to understand the German article. If I read it right, it's saying that a British court has upheld the view that recreating a very similar photo - in that case, a full colour, red double-decker London bus, driving through a black and white London with the Houses of Parliament in the background - is a breach of copyright.

And if it turns out that Wasteland, Inc. have collated a complete alphabet of Eine's letters on shop shutters in the same pattern as I did - and did so before January 2006 - then maybe they'll have a point. But I have no idea if that is the issue. All I'm told is that they're claiming copyright for an image I compiled out of photos that I took.

It would be much easier if the email I'd received linked to a copy of whatever it is they claim I infringed upon. As it is, all I know is that I took the photos and they're claiming it's their copyright. Time will tell. Or it won't, if they don't counter my counter-notice.

In lovestruck's case, that argument seems even less likely to be at the root of it. It's a photo of some canal hardware. There are less elements to be composed.

In the case given in that German article, I think it's highly unlikely that the judgement would work for two untreated photos of double decker buses passing by Parliament. They're both iconic symbols of London and those buses pass that building thousands of times a week. It's the decision to make one part colour and the rest black and white that suggests one picture is a copy of the other. That there could be a parallel situation with a photo of a sluice wheel on a canal seems a bit far fetched.

How many notes have to be strung together before someone says you've stolen their tune? Nobody can claim to own the copyright on a single note. It's entirely possible that I'll discover I've recreated their tune (so to speak). My image is a composition of other images and it's entirely possible that someone else has composed a similar image out of similar images. (I doubt it, mind, but we'll see) But I don't think that could be true for lovestruck - it's a photo - and the fact that we're both dealing with the same complainant suggests (I hope?) that Wasteland, Inc. have simply got it wrong twice.
Posted 38 months ago.
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I'm concerned that this rather eccentric decision may spawn more frivolous cases; could that be what Dave and other members are experiencing? If so, I'd hope that Flickr would put together some way of dealing with wrongful claims.
Posted 38 months ago.
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I don't think the decision in that case is all that eccentric to be honest. It does look to me like the second image is a steal of the first. It's to do with how many elements are in place and how much work is involved in constructing the image.

Anyone can stand in that spot and watch a bus pass by the Houses of Parliament. And anyone can photograph it. Anyone claiming to have originated that image would be laughed out of court. But the images in question aren't just photos of the same, easily seen thing... they've been treated in a particular way to create a particular kind of image. Leaving that one element in colour while making the rest black and white - is, knowingly or unknowingly, recreating what is, effectively the same image.

If you saw one image on a postcard in a shop one day - and then a week later saw the second image in the same shop, you would, quite sensibly, believe they were the same postcard.

And as I said above, it's entirely possible that with my image, someone believes I have recreated their composition. The component parts of it were all photographed by me. I've not seen them put together in that form before. But it's not too great a leap to imagine that someone has done similar. I hope I'll find out.

But I don't think it's a plausible explanation for lovestruck having her photo taken down.
Posted 38 months ago.
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It's entirely possible that this 'just' someone trolling. While filing a false DMCA notice is theoretically considered to be the equivalent of perjury, I've never heard of that being enforced, even in cases of flagrant abuse, and you can always submit the notice with fake details. The reason you can't find much sign of 'Wasteland Inc.' may simply be that they don't actually exist.

It'll be very interesting to see how this pans out.
Posted 38 months ago.
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In the bus case the Court seems to have decided that the infringer deliberately set out to recreate the original image. Judges don't like that sort of thing, and have been known to distort the law to punish it.
Posted 38 months ago.
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Until reading this thread, I didn't know that Yahoo! acted on these claims without evidence, because when filing my own claims, I have always provided evidence (believing that it was required).
Posted 38 months ago.
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Flickr don't have to address this issue. Or at least they don't have to again. There have been many such threads. Flickr has no choice about whether they respond to a DMCA takedown. They have to do it. The person filing the claim has taken responsibility.

There are however two things that I think flickr could do to improve things.
1: The email I received told me that my photo had been taken down and why. It didn't address what I could do if I though the complaint against me had been made in error. It would be nice if there was an extra paragraph saying. "If you think this NOI was filed in error you can make a counter claim. If you want to do so, please see this page for further information:info.yahoo.com/copyright/us/details.html

2: Currently, if the complainant and the flickr user are both based in the US things are handled differently. The photo is removed from view but not deleted until the issue has been resolved. This means that the metadata surrounding the image - views/favourites/comments etc - and any links around the internet - are preserved.

As I - and lovestruck. are both UK based we don't get that privilege. I know that's not flickr's fault, but if there was a way of preserving the page while deleting the image at least that information would be preserved in the event of an incorrect NOI.

At the moment, users have an option to replace any photo. Instead of deleting the complete page, is there a reason why flickr couldn't just replace my contested photo with a holding image and then delete the original. Then, if it turns out the NOI was incorrect I'd be able to just replace the holding image with my copy of the original. Metadata, links etc, would all remain intact.
Posted 38 months ago.
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I'm not sure if they ever explained why they were only able to preserve the photo page for U.S. users and rights complainers only. I don't think there's a provision on any international copyright law that affects content not part of the complaint, so it would be awesome if Flickr made that U.S.-only procedure global.
Posted 38 months ago.
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The person defending against a false NOI faces perjury charges if they make a false counter-claim. There is no such penalty for those making the original claim.

There should be consequences for those filing a false take-down notice (NOI). Flickr could easily amend their terms of use, or community guidelines to discourage it.

US-based flickr-ers have a faint hope of having their images and metadata restored after a false NOI is filed against them. International users are out of luck.

Having someone remove your image is equivalent to taking away your right to free expression. There should be serious consequences when it happens. Flickr has options. I think they need to protect all of their users against this type of behaviour.
Posted 38 months ago.
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I'm not sure if they ever explained why they were only able to preserve the photo page for U.S. users and rights complainers only. I don't think there's a provision on any international copyright law that affects content not part of the complaint, so it would be awesome if Flickr made that U.S.-only procedure global.

It's not just the metadata that gets preserved in an all US case. They technically don't delete the photo - just hide it from view. That's the difference. But even though they have to delete the photo in my case, I wish they had preserved the other stuff and put up a holding image while this was sorted. If I didn't have a copy of the photo it'd be gone forever and there'd be nought they could do. But I do have a copy. What I don't have is the comments etc or the ability to put it back in the existing URL which would preserve links etc.

The person defending against a false NOI faces perjury charges if they make a false counter-claim. There is no such penalty for those making the original claim.

Actually that's not true. They file their NOI under threat of perjury too. I just don't know what the chances of actually pursuing it are if it is the frivolous/incorrect claim I believe it to be.

There is one case I've read about of a DMCA takedown claim going horribly wrong for the person/company that filed it. It wasn't about photos though. I'll see if I can dig it out.
Posted 38 months ago.
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Just to update...
I have sent a mail based on the form
Яick Harris supplied and mailed it to the address Dave Gorman supplied to me after his research but as of yet have heard nothing :~((
Posted 38 months ago.
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It seems like something is amiss to me then. When I sent an email along those lines to copyright@yahoo-inc.com I received a cut & paste reply about 16 minutes later.

For what it's worth, that reply said:

Hello,

Please be advised that pursuant to 17 U.S.C. § 512(g)(2)(B) of the
United States Copyright Act, Yahoo! has timely provided the person who
provided the notification under subsection (c)(1)(C) with a copy of the
counter notification submitted by you.

Provided Yahoo! does not receive notice that such person has filed an
action seeking a court order to restrain you, as applicable, from
engaging in the allegedly infringing activity, Yahoo! intends to advise
you that the material may be reposted, as appropriate, on or about March
2, 2012.

The photo was posted in January 2006. I know from the internet archive that by October 11th 2007 it had been viewed 157,810 times and had 143 people calling it a favourite. I also know that it continued to receive between 100 and 200 views a week long after it was posted because it was linked to on wikipedia and elsewhere and seemed to show up in a load of searches and so on. All of that is now irretrievably lost.

There is nothing in the email from Yahoo! copyright explaining what I can do about it. They have not passed on any contact details for Wasteland, Inc. There is no explanation of what action I can take. Even though I'm sure it would, inevitably be expensive and foolhardy to do so, I know that their claim was filed under penalty of perjury... but what does that mean in practical terms? It would be nice if yahoo told me what it all meant rather than just saying I am allowed to repost the image.

There doesn't seem to be any disincentive to filing a frivolous claim if this is all that happens.
Posted 37 months ago.
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I know that their claim was filed under penalty of perjury... but what does that mean in practical terms?

Practically speaking, it means nothing, except in the rare case where someone takes something like this to court and has a successful resolution -- but I'm guessing the chances of that are pretty slim.

There doesn't seem to be any disincentive to filing a frivolous claim if this is all that happens.

I just sent a takedown notice to Zazzle, a search of "jesus dinosaur" brought up about 30 storefronts selling a couple hundred products with my artwork on it. I put links to all 30 storefronts in the notice, told them to take all the varying products they find out, and signed it "on penalty of perjury" as instructed. Within a week they were all gone.

So on the one hand yeah, that's not a lot of hoops to jump though to remove HUNDREDS of products all at once. But on the other hand, I'm happy it was so easy.

I'm not sure there's a good answer with this process, it's going to suck for one side or the other.
Posted 37 months ago.
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And unfortunately it has been made painfully clear over the years that the meta data generated around our images are not controlled by us, and are in fact owned and controlled by Flickr. As such there is no expectation of protection for that data.

I think the best we can hope for is that Flickr can find a way to extend the preservation of a photo page during a copyright dispute outside of just U.S. vs U.S. combatants. I assume there's some badly written international law preventing that currently though (like "removal of offending image and page is mandatory" sort of language).
Posted 37 months ago.
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"I'm not sure there's a good answer with this process, it's going to suck for one side or the other. "

Yeah... I just can't help thinking it should be the person who's, y'know, wrong. It's great that Zazzle took all those products down so quickly. But if you'd claimed the artwork was yours and it wasn't - it should be possible for them to claim back for time/inconvenience/costs incurred etc. Otherwise there's no disincentive to make false claims, whether for spite or out of incompetence.

"I think the best we can hope for is that Flickr can find a way to extend the preservation of a photo page during a copyright dispute outside of just U.S. vs U.S. combatants."

I don't see why the metadata should come into it at all. That's not what's being disputed. I get that flickr needs to remove the image from their servers - not just from view - to be compliant with the law... but that could just as easily be achieved by replacing the image as by deleting it. That way the page would remain and the user would be able to replace it with their original (should they have one) after the event.
Posted 37 months ago.
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Interesting to catch up with all of this. I emailed lovestruck. earlier this evening when I saw your re-posted image. She's on a river or a canal somewhere and doesn't always have a signal so she might take a little while to respond.

A quick TinEye search throws up a few versions of your image that were probably the 'old' one as they are now no longer available.
Posted 37 months ago.
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Several people have assumed Wasteland, Inc. were shopwasteland.com - because that's the most likely thing according to google.

But another Wasteland, Inc. were responsible for issuing several DMCA takedowns in January/February this year. ChillingEffects.org has a record of six issued against Google in that time frame - all to remove links to torrent sites that hosted output made by Wasteland, Inc.

The Wasteland, Inc. in question are purveyors of adult videos.

Guess 1: it's this Wasteland, Inc. that both lovestruck. and I are dealing with.

All of the DMCA's listed in their name on ChillingEffects.org were issued by a company called Degban Limited. I've looked over their website and it's interesting.

Guess 2: Degban are using automatic detection software that scours the internet looking for what it thinks are copyright infringements.

Guess 3: They're not checking the hits properly to see if they really do match copyrighted content, or the people who are paying them - Wasteland - are just nodding every suggested hit through? Either way, the result would be that they inadvertently take some unconnected images out as collateral damage.

If that is the case, I wonder if Yahoo! is able to disregard their takedowns in future on the grounds that they're track record shows them to be, unreliable at best?
Posted 37 months ago.
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My point is just that copyright law is different in each global region. While the U.S. law may have been written to focus on just the infringing content, it is likely that the international laws have different language, and require that the "page" the content is on be removed, not just the content.

That is my guess, having read some of these copyright laws in the past, and an explanation for why Flickr can't preserve the page unless the cited law is the U.S. DMCA (since each user is directed to different copyright instructions and laws based on the country they reside in.)
Posted 37 months ago.
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Well my guesswork seems to have been right. Degban Ltd were responsible for filing the complaint.

I emailed the company. The CEO has replied. I can't say I find his explanation particularly convincing.

Hello Dave

I do apologize for the inconvenience, we have been victim of a phishing/hacking attack, which was aimed at reducing our credibility
among clients and the public as you can see how, I truly am sorry
that you were effected as such, but allow to humbly suggest that
you channel a part of your anger at those holier than thou hackers
who effect users like yourself by such irresponsible actions
we are working hard to fix the matter, but alas we can not do much
as the size of the attack was larger than we could have expected

I am hoping you can manage to get back your traffic and are never
affected by such issue ever again

Yours
Taban Panahi

Degban Ltd.

If this really is the case then, as a responsible company you'd think they'd be getting in touch with Yahoo! and others asap to explain that false takedown notices from them are likely to have been received and should be disregarded. I've asked them if they have done so.

I've asked Yahoo! also. But the response from their legal team has been disappointing since I was told I could repost the image. In fact, the only responses I've had from them have been 3 boilerplate responses - 1: to the original NOI, 2: to my counterclaim and 3: to the 14 days since my counterclaim having elapsed.

As you note for non-US copyright takedowns that aren't subject to the DMCA the photo is removed and it isn't possible to use the same URL.

When we made the change to the DMCA takedowns we also discussed how/if we should change handling of take downs in other countries but we weren't able to implement anything at that time.

Making changes to legal processes needs to be well thought out and isn't always quick as you can imagine. You raise a lot of good points though and I'm going to take them to the rest of the team to see what we can do.
Posted 37 months ago.
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when I received the email saying it was okay for me to reupload the photo it ended with the phrase: "Please contact us if you have any questions or we can further assist you in this matter."

I wrote back asking them to provide me with the contact details for the person who had filed the NOI. They haven't replied. If they're not allowed to pass me that information it would be polite to write explaining that. If they are it would be nice if they did so.

If someone files a malicious NOI and the person they do that to is not allowed to pursue them for doing so where is the disincentive. And without any disincentive what is the point in Yahoo nuking things the moment they receive an NOI?

The CEO of Degban has told me that his company has been hacked and that malicious NOIs have been sent out in their name. I know! Imagine! How many NOIs have flickr received from Degban. Are any still being received. Has he contacted you to explain this mysterious hacking incident and let you know that you can disregard NOIs from his company for the time being.

Questions, questions, questions...

But, less specific to my particular case, here are my suggestions to improve the process:
1: What is your legal obligation when you receive a DMCA? Are you in any way obliged to delete the comments/faves/views and the url? If you're not, then doing so is damaging when a DMCA turns out to be false/malicious. That stuff can't be reinstated. Hyperlinks shouldn't have a sell-by date. Even if you're not allowed to hold a copy of the image, is there a good reason why your way of deleting it couldn't be to replace it with a holding image?

2: The email telling the user that their photo has been removed seems to assume that they're guilty. It has two bits of information. a) Your photos gone because someone says they own the copyright. b) Do it again and we might close your account for good.
It would be nicer if it had a 3rd paragraph saying, c) if you believe this NOI to have been filed in error, this is what you can do about it.

Currently the user has to reply to flickr asking for advice, whistle for 2 or 3 days while customer service work through their queue and then be sent an email telling them where they can find that information. There's no good reason why that information couldn't have been a click away from the original email.

3: the email that tells the user they can repost the image could be a whole lot friendlier. It doesn't retract the "if this happens again we'll close your account" clause from email1. It doesn't explain what you can do about the malicious claim. It doesn't tell you who was responsible for the malicious claim.

Does someone who files an incorrect claim have their ability to file future claims diminished? Once someone has filed an NOI that has been successfully contested it would seem to me to be a reasonable position for Yahoo to regard their future NOIs with suspicion at least.

I'm sure the vast majority of NOIs received relating to flickr are legit. And the process you've arrived at is fine for dealing with those. But if it doesn't take into account and deal fairly with those who are wrongly accused then it does a disservice to paying customers and there's a sense that Yahoo hides behind the DMCA to that regard. "We have to delete the photo because of the DMCA" doesn't mean "we have to delete the metadata, not advise you on how to respond and be unhelpful after the event." One does not excuse the other.
Posted 37 months ago.
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(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.—

(1) No liability for taking down generally. — Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2) Exception. — Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider —

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

(my emphasis)

My reading of that suggests that it is your obligation to replace the content... which is not the same as emailing me to tell me that if I still have a copy I can repost it.

You should be replacing it. (Where it was? Not in a new location?)

I can't see anything in that document that suggests you should nuke the entire page taking the metadata with it. Surely the fact that you might end up being obliged to replace it suggests otherwise.
Posted 37 months ago.
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Dave Gorman edited this topic 37 months ago.

You're citing "Copyright Law of the United States of America", but as Zack (and I) have explained, the laws and requirements for different countries are not the same. What you have found is correct, which is why when subject to U.S. law, Flickr does not remove the page, URL, or accompanying metadata.

Well the emails from Yahoo!'s legal people to me all cited the DMCA so that's the law I'm citing back.

Besides, Wasteland Inc are a US company. Degban has an LA office (as well as their UK base) and while I'm in the UK, the servers on which my photos were stored were in the US.

Regardless of where I happen to live I don't see in what sense this claim was happening in the UK.

Of course I'm no lawyer so I might be wrong. But if it is subject to different laws it would be useful if they (yahoo!) would cite those laws in their dealings with me.
Posted 37 months ago.
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Can you share a sample of the completed counter-notice you provided to Yahoo! ? I'm sure it will be helpful to those who might encounter it in the future. It doesn't have to include personal information.

BTW excellent detective work. It would be nice to see an overlay obscuring the image when a NOI is disputed. Similar to the process youtube follows.
Posted 37 months ago.
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The photos were taken over a two day period in January 2006. The
collage was also made in January 2006 using the following website: bighugelabs.com/mosaic.php

I state under penalty of perjury that I have a good faith belief that
the material was removed as a result of a mistake or misidentification.

My name is Dave Gorman.
My address is: [removed]
Tel: [removed]

I consent to the jurisdiction of the Federal District Court of any judicial district in which Yahoo! can be found and I will accept service of process from the complaining party or its agent.

Signed: /Dave Gorman/

The stuff in bold is basically the important stuff that has to be there. The bit in the middle wasn't required by any means but in this particular instance a lot of extra identifying material was available so I threw it in figuring it couldn't hurt.

But the essential ingredients are:
1: a statement identifying the material and the url
2: the "I state under penalty of perjury" paragraph.
3: Name/address telephone number.
4: the statement consenting to the jurisdiction of the Federal Court etc...
5: Digital signature... ie: /your name/

yeah, it looks like you have to agree to consent to whichever jurisdiction Yahoo deems appropriate. And it must get even weirder if a notice is sent from one country using that copyright law, then you send a counter claim using the copyright law of the country you're in, etc.

I live in France right now but Yahoo is one of the rare sites who still treats me as an American, so when I click on the copyright link I get the U.S. copyright claim form. So that adds a whole 'nother layer.

Exactly... and seeing as I consented to their jurisdiction of choice, I'd now like them to fulfil their responsibilities within that jurisdiction and replace the content they removed... as per the terms of the DMCA.
Posted 37 months ago.
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But what if their jurisdiction of choice is one that doesn't allow for that? Which seems to be what occurred. Just because they were "speaking" to you via the U.S. copyright law, that doesn't mean that's the jurisdiction used for the initial takedown.

Again I'm no lawyer either, but it looks like you basically had to consent when giving your counter notice, to allowing them to use whichever mishmash of law and jurisdiction they want.
Posted 37 months ago.
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As Heather noted when the change was released the process where we restore currently applies to "NOIs filed by US individuals/members on US Flickr members" and this was not a case of a US to US NOI.

It is normal for Copyright to reply to you with contact information of the person that filed the NOI and they will be getting back to you later today with that info.

You do raise a lot of good points about the process and the email as I noted. I'll be talking to the rest of the team and I'm sorry that this has been so frustrating.
Posted 37 months ago.
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"As Heather noted when the change was released the process where we restore currently applies to "NOIs filed by US individuals/members on US Flickr members" and this was not a case of a US to US NOI"

Yes. But nobody's ever explained why this is the necessary process for non US to US NOIs. You tell me that it is the process. I tell you that I think the process is unreasonable. The next stage isn't you repeating that it is the process, it's you explaining why it's the process. I'm perfectly prepared to believe there is a reason. I just don't know what it is.

Also... let's not forget that I'm not the OP. lovestruck also had a takedown filed on behalf of Wasteland. To the best of my knowledge she's sent a counterclaim and had no reply at all. Someone from flickr might want to get in touch with her and let her know what's going on too.
Posted 37 months ago.
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"It is normal for Copyright to reply to you with contact information of the person that filed the NOI and they will be getting back to you later today with that info."

They have indeed sent an email. It gives me one piece of information while ignoring all my other questions. I think it would be nicer if they tried to answer my other questions or at least acknowledged that they aren't doing so and explained what information they can and can't provide. That's how normal conversations work.

I've replied asking 3 questions. How long do we reckon I have to wait for another reply? 3 days? A week?
Posted 37 months ago.
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Dave Gorman edited this topic 37 months ago.

My opinion is that Zack's employers are not giving him the resources required to do his job.

He was not able (or not allowed) to tell me why it is Flickr's policy to delete content in a non US-US claim. He was not able to tell me whether or not it was possible to replace the content they've removed. He was not able to tell me why they don't think the obligation to replace material that is one of the terms of the DMCA is applicable to them.

He was nice and friendly. But he wasn't allowed to answer any of the questions that are pertinent to this issue. Which, given his job, seems somewhat remiss.
Posted 37 months ago.
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Dave - that's a pretty standard response from a low to mid level employee at a large multinational. Those are all legal questions and Zach is not in the legal department and is probably not allowed to respond to specific questions of law and interpretations of law as it pertains to his job.
Posted 37 months ago.
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Zack is the senior community manager. He had got in touch because he wanted to help with this issue.

It must have been obvious that I would ask him why flickr deletes - rather than disables access to - content in situations like this.

I would expect the senior community manager to have access to an explanation for this policy and if not, I would expect him to be able to find it in advance of a situation where he knows he cannot help without it.

When flickr deletes your content because of a DMCA takedown it tells you that it is *because* of a DMCA takedown.

Surely when it then doesn't remedy the situation as the DMCA obliges it to do, it should be able to provide a similar explanation. We do X because of Y.

I know Zach's position at Flickr. And I suspect there are more levels of managers above him rather than below him, hence my characterization of mid to low level.

I agree it feels unprepared/unprofessional if he proactively reached out to you to help but was unable to answer any specific questions. Your legal questions were not a surprise to anyone who has more than a passing familiarity with the DMCA and your particular case.

Ewan - it's my belief that only the most customer-responsive companies are going to make a legal representative available to a customer on friendly terms. Sadly, Flickr is part of a larger organization, Yahoo!, that is not very customer-responsive.
Posted 37 months ago.
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when we spoke yesterday you promised me that someone from Yahoo!'s legal team would be in touch today. It's 8.30 pm here. I will be up for a while, yet. But you - and they - are aware of the time difference so I would have expected someone who intended to get in touch today to have done so by now.

Let's just be clear. Yahoo's corporate policy is intentionally opaque and their response to copyright infringement complaints is to be hostile & unresponsive to the accused infringer, even after it has been conclusively shown that no infringement occurred. Meanwhile, Wasteland continues to send massive amounts of automatically generated copyright infringement complaints clearly in violation of the law, and yet they are treated with kid gloves by Google, Yahoo, Facebook and others who continue to honor their bogus takedowns and make their sites less valuable for their community of users.

My guess is Wasteland Inc., the abusive company at the center of many similar illicit notifications, was able to get something more than "I'm not allowed to tell you anything of import" when they spoke to Yahoo! Inc.

When will Yahoo! decide to unmuzzle their employees and allow them to actually answer critical questions about copyright and the abuse of the DMCA?
Posted 37 months ago.
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Wasteland, Inc. hired a company called Degban to act as their copyright agents. I think it's only fair to say that Wasteland had no idea what Degban were doing in their name and have been on the front foot to apologise.

In fact, out of the three companies involved here - Yahoo, Degban and Wasteland - it's Wasteland who have been the most communicative.

Degban have been evasive. They initially blamed this on their systems being hacked (as if that somehow made it okay!) They confidently declared that their system had been hacked on February 29th which would have been some kind of defence had my takedown not happened on February 17th. Since that was pointed out to them they've gone terribly quiet and much evidence of their ridiculous takedowns has come to light.

But I don't believe they're playing dumb because they promised Degban or Wasteland that they would do so. I'm growing more and more inclined to believe that the reason they won't explain is because nobody actually remembers why they made it this way in the first place.

I suspect that somewhere down the line they will realise that there is no compelling reason for deleting - rather than disabling access to - disputed content and things will change.

Any delays might come about because a lawyer is calculating the risk of people retrospectively seeking reparations for their wrongly deleted content.

But, for now, they're sticking to the tactic of saying there is a reason while refusing to say what it is. That seems like an embarrassing road to take, to me. And I think it will get more embarrassing the longer they stick to it.

Of course there might be a real reason. Quite why it applies to flickr and not youtube et al is beyond me... but it might exist. In which case, it would be wise to let us know so that we might best put our energy into campaigning against whatever law it is that compels them to behave in this unjust way.
Posted 37 months ago.
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Dave Gorman edited this topic 37 months ago.

Is there a legally compelling reason why flickr would choose to delete - rather than remove access to - a photo that was subject to a copyright dispute?

If there is a legally compelling reason can they please tell me what it is?

If there isn't a legally compelling reason, can they please explain why it is company policy to do so when the terms of the DMCA do not compel them to?

The terms of the DMCA are quite clear in stating that once a counter notice has been filed and gone unchallenged for 14 days, the service provider - in this case flickr - is obliged to replace (or cease disabling access to) the content they removed.

Flickr's policy (this recent incident is not a one off) is not to do this. They do not wish to explain this policy.

I would like to know why this is the case?

The reply I have received is as follows

Hello Dave,

After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed. We are unable to reactivate the page that was deleted, as a result of Wasteland, Inc.'s copyright notice. Please know that we continually review and update our policies and processes and welcome your comments. As a result of your comments and correspondence related to the Flickr deleting/disabling issue, we hope to soon revisit it.

So they basically flipped you off? Send it back over to Masnick/ Techdirt.

Hate to say it, but this fits right in w/ the TechCrunch/ Techmeme narrative that Yahoo! is flailing and doing their best to undermine the only great service they have left.

Damn damn damn. Can't they even answer the damn questions! What if someone DMCA's my whole account... would Yahoo just shrug their shoulders and say "sorry."

Censorship is a term that's bandied about way too much, but the Yahoo! policy for dealing with DMCA & other copyright infringement notices is basically to empower anyone that has a grudge with the power to censor. How are we supposed to love Flickr when even its most dedicated customers get the brush off?
Posted 37 months ago.
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Sad thing is, Yahoo! has no liability. They have the right to delete any of our content at any time. The DMCA only specifies what Yahoo! must do to avoid any liability for copyright infringement by its users. This is what they MUST do:

1) Must remove access to material within a reasonable time after receiving a DMCA.
2) If a user contests the claim with a counterclaim and the the accuser withdraws their complaint, Yahoo! may, at its sole discretion, restore the allegedly infringing content, and maintain their safe harbor status. They may also choose to leave the material deleted and maintain their safe harbor status.

Yahoo! has no liability. But they do have the ability to alienate even more of their members and potential members by consistently siding with the accusers and giving nothing more than perfunctory replies to their users.

Flickr is far from dead, and the Techpress is far from representative of the country at large. But man, Flickr got its start in large part by being the darling of the tech press' eye... web 2.0 before there was Web 2.0. But oh man, they turned on Flickr long ago and love digging in their claws to finish it off. Remember when people cheered for Flickr?

So yeah, Yahoo! doesn't have to do jack. Keep that up long enough, and there won't be any around that cares.

---------

Question the Flickr die hards for 5+ years... Well, two actually:

1) Do you recommend to your friends that they use Flickr to share photos?
2) Did you used to?

Your account can't be "DMCA's", only individual images. That would require 15,000 individual takedown notices, or a single notice with 15,000 different links to each individual image. I think your slippery slope example is safely made of velcro, and plumb level.

I'm also not sure why you're connecting this issue to a perceived slide in Flickr/Yahoo's quality or customer service. This has been the ongoing policy for many years, and I haven't yet found an explanation for the difference between U.S. based copyright issues and foreign ones. Which suggests the issue is independent of any sky-is-falling-we're-doomed scenarios that may be hatching within yahoo's walls.

And if you think people will leave in droves over copyright/privacy/customer service issues, I think that asshole no one can stand across the street named "Facebook" might suggest otherwise.
Posted 37 months ago.
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Flickr expressly reserves the right to immediately modify, delete content from, suspend or terminate your account and refuse current or future use of any Yahoo! service, including Flickr Pro, if Flickr, in its sole discretion believes you have: (i) violated or tried to violate the rights of others; or (ii) acted inconsistently with the spirit or letter of the TOS, the Community Guidelines or these Additional Terms.

In such event, your Flickr Pro account may be suspended or cancelled immediately in Flickr’s discretion, all the information and content contained within it deleted permanently and you will not be entitled to any refund of any of the amounts you've paid for such account. Flickr accepts no liability for information or content that is deleted.

I don't believe this does mean that flickr can delete any of your content at any time without liability. I think it means, flickr can delete any of your content at any time without liability if, in its discretion, it believes you are in breach of the guidelines.

This covers them for those cases where it's a judgement call. The community guidelines are (sensibly) not nailed down ("don't be that guy" etc.) and sometimes one of their agents is going to believe that a user is crossing a boundary that the user does not recognise. This covers them in such an instance.

But I don't believe that this applies in this instance (or in instances like it). I don't just mean that they haven't told me they believed I'd violated the rights of others or otherwise acted against the TOS, I mean that their correspondence so far shows that they explicitly did not think I had.

But more importantly, I simply don't think it's important whether or not they have to do this or don't have to do that. They - and only they - can repair it. To choose not to do so is strangely stubborn of them.

If you turn javascript off you can see Google's cache of the page here (turns out there were 269,843 views, 78 comments, 252 favourites and it was in 11 galleries)

So it is possible for them to reinstate the page. They just have to put it there.

Their current stance appears to be, We know you did not breach the guidelines and weren't infringing anyone's copyright and we know that we can replace the content that we deleted but... um... well... we're not going to.

That seems like a strangely unfriendly stance to take to me. It is normal for companies to bend over backwards to correct things. Doing so speaks highly of them and wins brand loyalty. Not doing so does the opposite. What happened to "we don't have to do this but as a gesture of good will, we're going to"?

What would be the cost of doing so? How many man hours would it take? (Genuine questions) Maybe Degban could be persuaded to pay for it? (Not quite such a genuine question)

If it is expensive, think of how much money they'll save by adopting the current US-to-US policy for future takedowns (which I don't doubt is where they're heading). No more rebuilding lost content ever again!

EDIT: Also... is there a reason why they won't send me a copy of the Notice of Infringement that led to this? Their refusal to do so is making me suspect worse things.
Posted 37 months ago.
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Dave Gorman edited this topic 37 months ago.

Question the Flickr die hards for 5+ years... Well, two actually: 1) Do you recommend to your friends that they use Flickr to share photos? 2) Did you used to?

Yes, and yes.

But nobody listens to me. My friends and family members all share their images on the other site you mentioned, where I can't see them because I closed my account there in 2009.

I have never liked/respected Yahoo!, but I have always liked Flickr. Each year, I continue to gamble with my money and my time that Flickr will stay open another year.
Posted 37 months ago.
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"I don't believe this does mean that flickr can delete any of your content at any time without liability."

yes except the only content that's "yours" in this case is your photo. You don't own the content and meta data on the page, Yahoo does. You may have a copyright claim preventing Yahoo or someone else from reproducing your content elsewhere (say some prose in the description field), but Yahoo has asserted the right to remove any content generated on Flickr for any reason, and to do so without warning or permission.

I think you're going to have a hard time proving the right of possession for tags, favorites, view counts, and comments. Which in this case and I may be wrong, seems to be what you are looking to have returned.
Posted 37 months ago.
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yes replacing the photo in pretty much any situation after a takedown rebuttal would make some sense. But as this is a digital file, and there is some assumption that no one in their right mind would assign their only sole copy of anything important to them onto an internet page that they do not control, I think the permission to re-upload the image pretty much covers that requirement.

I mean, if you don't have the photo anymore, I suppose they could email you the image so you could re-upload it. But after that there is no obligation on their part, in any reading of the DMCA law or TOS, to recreate the URL that it originally resided in.

It'd be a nice customer service thing I guess. But it'd still be absent of any of the meta data stuff that would make the replacement matter for anything, so what's the point?
Posted 37 months ago.
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The Searcher Wat? If it was a DMCA notice on a merkin' later withdrawn, the page would be restored with hundreds of comments, thousands of faves and still be embedded on dozens of pages across the web.

Uploading a new copy simply isn't the same thing, which Flickr itself tacitly & openly acknowledges.

And "nice customer service things" is the way you get people to purchase your product or service.
Posted 37 months ago.
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This thread was closed automatically due to a lack of responses over the last month.